Detaining Authority Must Show Likelihood Of Bail To Pass Preventive Detention Order Against Person Already In Custody: Gauhati HC Reiterates

The Gauhati High Court recently set aside detention and confirmation orders under NDPS Act against two detenues in judicial custody, on the ground that the orders lacked cogent materials based on which the Detaining Authority had reasons to believe that the detenues could be released on bail.The division bench comprising Justice Manish Choudhury and Justice Devashis Baruah observed:“The Detention Order No.I as well as the Detention Order No.II dated 04.07.2024 as well as 12.07.2024 respectively passed by the Detaining Authority and the grounds of detention so enclosed as Annexure-A to the said Detention Orders do not in any manner mention that there were materials available with the authorities on the basis of which it had reasons to believe that there was a real possibility of the detenues being released on bail. In the grounds of detention in both the cases, though the Detaining Authority acknowledges that the detenues are presently under judicial custody but there is no mention of cogent materials on the basis of which the Detaining Authority had reasons to believe that the detenues in both the cases had a likelihood of being released on bail.”Quoting verse from the song introduced in the cinematographic version of Joy Adamson's memorable classic “Born Free”, the court said that the same aptly describes the concept of personal liberty and individual freedom. "The said personal liberty and individual freedom can be curtailed by preventive detention laws, which could be used to consign an individual to the confines of jail without any trial, on the basis of the satisfaction arrived at by the detaining authority on the basis of the material placed before him," the court underscored. The Court as hearing two writ petitions filed by the relatives of the two detenues who were arrested together on May 11, 2024 in connection with Narcotics Case registered under Sections 18(b) and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS). An FIR was lodged by the Narcotic Cell Police Station, PHQ, Kohima on May 11, 2024 stating that on the same day during routine checking of the vehicles between Khuzama and Viswema Village, a vehicle wherein there were two occupants namely Karj Singh (the detenu in the present proceedings) and Naseeb Singh [the detenu in W.P.(Crl.) No.22/2024] were stopped and search was conducted.It was alleged that while conducting the said search, in the specially built cavity chamber in the running board of the vehicle, drugs suspected to be opium were found inside the chamber. It was further mentioned that 30 packets suspected to be containing opium i.e. 15 packets in each running board of the vehicle were recovered. The suspected narcotic drugs were taken out, weighed separately and total weight approximately 31 Kilo 213 Grams were seized.On the basis of the said FIR, a case was registered under Sections 18(b) and 60 of the NDPS Act against both the detenues. The Additional Director General of Police (L&O) and Chairman Screening Board PITNDPS Act, Nagaland issued a communication on June 27, 2024 to the Special Secretary (Home) to the Government of Nagaland, Home Department thereby sending his proposal for detention of Shri Karj Singh under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Act of 1988).On the basis of the said proposal dated June 27, 2024, the detention order was passed on July 4, 2024 in the case of Shri Karj Singh herein after for the sake of convenience referred to as the Detention Order No.I. The said Detention Order No.I was served upon the detenu – Karj Singh on July 9, 2024 along with the grounds of detention, the information to the detainee about his rights as well as the other enclosures.The Advisory Board after hearing the detenu in-person vide an order dated September 17, 2024 opined that there were sufficient causes for the detention of Karj Singh – detenu. Thereupon, on October 7, 2024, the Chief Secretary to the Government of Nagaland had passed the Confirmation Order (Confirmation Order I) in terms with Section 9(f) of the Act of 1988.The second writ petition, which was filed by the wife of the detenu –Naseeb Singh who was also arrested along with Karj Singh on May 11, 2024 in connection with Narcotic Case No.007/2024 under Sections 18(b) and 60 of the NDPS Act. Naseeb Singh was initially remanded to police custody from May 12, 2024 to May 23, 2024 and since May 23, 2024 he has been in judicial custody.On July 12, 2024, the Detention Order (Detention Order II) was assed by the Special Secretary to the Government of Nagaland, Department of Home against Naseeb Singh. The Advisory Board vide a report dated September 17, 2024 after hearing the detenu in-person opined that there were sufficient causes for detention of the detenu – Naseeb Singh. Subsequent thereto, on October 08, 2024, the Confirmation Order (Confirmation Order II) was passed by the Chief Secretary to the Government of...

Detaining Authority Must Show Likelihood Of Bail To Pass Preventive Detention Order Against Person Already In Custody: Gauhati HC Reiterates

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